Subject:

Requested By:

Mr. John A. Williams, Jr. State Budget Officer North Carolina Department of Administration

Question:

Should the salaries of the members of the Industrial Commission continue to be set by the Governor upon approval of the Advisory Budget Commission pursuant to G.S. 97-78 rather than being set under G.S. 143B-15 by the General Assembly upon recommendation of the Governor?

Conclusion:

Yes: The specific provision of G.S. 97-78 prevails over the general provision of G.S. 143B-15 providing for the setting of salaries for members of commissions subject of Chapter 143B.

The salaries of members of the Industrial Commission have long been set pursuant to G.S. 97-78, which provides that the salaries of the chairman and the other commissioners are fixed by the Governor, subject to the approval of the Advisory Budget Commission. The 1977 General Assembly, in Chapter 198 of the 1977 Session Laws, amended Chapter 143B of the General Statutes to bring the Department of Commerce within the provisions of the Executive Organization Act of 1973, as amended. In the general provision of Chapter 143B, the legislature provided that the General Assembly, upon recommendation of the Governor submitted as part of his budget requests, should set the salaries of members of full-time commissions subject to that Chapter. G.S. 143B-15. The question is whether the salaries of the members of the Industrial Commission should be set by the Governor subject to the approval of the Advisory Budget Commission as provided by G.S. 97-78, or should be set by the General Assembly upon recommendation of the Governor in his budget requests, as provided by G.S. 143B-15.

Whenever possible, statutes should be construed so that they do not conflict. However, where the language of a statute is clear, there is no room for construction. Utilities Commission v. Union Electric Membership Corp., 3 N.C. App. 309, 164 S.E. 2d 889 (1968). Where two statutes dealing with the same subject cannot be harmonized, a special statute dealing with the subject matter in the more detailed way prevails over the general statute, regardless of which act was enacted first. National Food Stores v. Board of Alcoholic Control, 268 N.C. 624, 151 S.E. 2d 582 (1966); see also Utilities Commission v. Lumbee River Electric Membership Corp., 275 N.C. 250, 260, 166 S.E. 2d 663 (1960); Utilities Commission v. Union Electric Membership Corp., 3

N.C. App. 309, 164 S.E. 2d 889 (1968).

"It is a fundamental rule that where the general statute, if standing alone, would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to, or qualifications of the general statute, whether it was passed before or after such general enactment. Where the special statute is later, it will be regarded as an exception to, or qualification of, the prior general one; and where the general act is later; the special statute will be construed as remaining an exception to its terms, unless it is repealed by express words or by necessary implication." 82 CJS, Statutes § 369, pp 843-44.

This rule was followed by the North Carolina Supreme Court in Lewis v. White, 287 N.C. 625, 216 S.E. 2d 134 (1975). There the Court said that G.S. 143B-58, which gave the State Art Museum Building Commission authority to employ architects, to make plans, and to enter into contracts for construction of the art museum building, to employ consultants, and to supervise the construction, location, renovating, and care of the building took precedence over the provisions of G.S. 129-42, empowering the North Carolina Capital Building Authority to select and employ architects, engineers, and other consultants for planning, supervising, and constructing buildings. The Court held simply that G.S. 143B-58, authorizing the State Art Museum Building Commission to employ architects and provide for the construction of the State Art Museum Building, controlled by virtue of being the special statute. Lewis v. White, 287 N.C. 625, 216 S.E. 2d 134 (1975). Similarly, the Supreme Court held that specific provisions relating to the transfer of ownership of a motor vehicle prevailed over the Uniform Commercial Code provisions for transfer of title for goods since the special statute, even though it was enacted earlier, must prevail, Nationwide Mutual Ins. Co. v. Hayes, 276 N.C. 620, 639, 174 S.E. 2d 511 (1970).

Since G.S. 143B-15 deals with the salaries of members of any commission subject to Chapter 143B, it is a general statute in relationship to G.S. 97-78, which deals specifically with the salaries of the chairman and members of the Industrial Commission. Chapter 198 of the 1977 Session Laws, which placed the Industrial Commission under the provisions of Chapter 143B, does not in any way by express terms or necessary implication demonstrate an intent to repeal the provisions of G.S. 97-78 regarding the setting of salaries of members of the Industrial Commission. Therefore, the provisions of G.S. 97-78 must prevail, and the salaries of the chairman and members of the Industrial Commission should continue to be set by the Governor subject to the approval of the Advisory Budget Commission.